COURT: THERE WAS LEGITIMATE BASIS TO IMPOSE FINES ON BID RIGGING PARTICIPANTS

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Vilnius Regional Administrative Court (Court) upheld the Competition Council’s decision, according to which a bid rigging agreement was concluded by the companies acting in the municipal waste collection and transportation sector. The infringement of the Law on Competition resulted in fines.

On 8 December 2016 the Council found that in 2015 UAB Ekoaplinka, UAB Ecoservice and UAB Marijampolės švara concluded a collusive bidding agreement while participating in the public procurement for the purchase of municipal waste collection and transportation services, which was organised by UAB Marijampolės apskrities atliekų tvarkymo centras. Such restriction of competition might have resulted in higher prices of municipal waste collection and transportation services for consumers.

The Council’s experts found that a representative of Ecoservice, acting upon the knowledge of Marijampolės švara, prepared the project of a bid for Ekoaplinka, including the price and data for its calculation, according to which Ekoaplinka submitted the bid to Marijampolės apskrities atliekų tvarkymo centras. No modifications to the bid price or its calculation were introduced by Ekoaplinka, except for a few minor changes to the project. Besides, Marijampolės švara and Ecoservice provided consultations to Ekoaplinka prior to the submission of the bid, as well as after bid opening.

For the anti-competitive agreement, the Council fined Ekoaplinka EUR 4,100, Ecoservice EUR 601,700 and Marijampolės švara – EUR 48,500.

Ekoaplinka did not appeal the Council’s decision to Court and paid the fine. Although the other two companies acknowledged the infringement, they decided to challenge the fine imposed by the Council. The Court rejected the complaints by the companies and stated that there is no legitimate basis for reducing the fines. Following the case law of the Court of Justice of the European Union, the Court noted that the definition of the income related to the infringement, which is used to determine the basic amount of the fine, cannot be unduly narrowed. The Court agreed with the Council’s position that in this particular case the income received from the activities of mixed municipal waste collection and transportation services in Lithuania, not just in the region of Marijampolė, had to be included while setting the fines.